Focus on the leaking, not just the spying

Attorney General William Barr thinks that U.S. intelligence agencies spied on Donald Trump’s 2016 presidential campaign, he told the Senate Judiciary Committee Wednesday. And as Bloomberg News reported Tuesday, he has assembled a team to review the matter.

He does not know if the spying was improper, Barr emphasized. “The question is whether it was adequately predicated,” he said. He later clarified that he does not think the FBI itself is corrupt. Nonetheless, Barr said, “spying on a political campaign is a big deal.”

Barr is correct on both counts — that there was snooping on the Trump campaign, and that the question of whether it was justified deserves further scrutiny. What also deserves scrutiny is how an ongoing intelligence investigation into that campaign became public.

As far as the spying is concerned, none of this should be a surprise. It has already been reported, for example, that in the summer and fall of 2016 the FBI sent an informant to meet with three Trump advisers and report back. The bureau also received a warrant in October 2016 to eavesdrop on Carter Page, a former Trump campaign adviser (notably, the warrant allowed the FBI to read Page’s past texts, emails and phone logs). The head of the U.K.’s signal intelligence agency briefed former CIA director John Brennan that fall on intercepts that showed communications between Trump’s campaign and Russian officials.

And just because special counsel Robert Mueller did not find evidence of a conspiracy between the Trump campaign and Russia to influence the 2016 election, it doesn’t necessarily follow that the spies and FBI officers probing those claims violated any laws. What’s more, many of these kinds of investigations are predicated on suspicion that a U.S. person has been targeted by a foreign power — even if that individual did not knowingly engage in espionage.

The abuse of power here is what happened after Trump won the election. This is when the investigations themselves and other kinds of surveillance were disclosed to the press. Details about incoming National Security Adviser Michael Flynn’s conversations with the Russian ambassador during the presidential transition leaked. So did the FBI’s probe of Trump associates and their contacts with Russia, along with the existence of the surveillance warrant on Page himself.

It’s hard to say whether these leaks were coordinated, but there have been some suggestive clues. The New York Times reported in early 2017 that, in the days and weeks leading up to Trump’s inauguration, intelligence and White House officials distributed intelligence on contacts between Russia and Trump associates far and wide. Senator Benjamin Cardin, a Democrat from Maryland, actually received a packet of material marked “secret” from the State Department. The wider such intelligence is circulated, the easier it is to leak it.

Then there is the role of Brennan himself. The Times has reported that in August 2016 Brennan began briefing Congressional leaders that Russia was working to elect Trump and that some of his advisers could be working with the Kremlin on this effort. Among those Brennan briefed was then-Senate Minority Leader Harry Reid, who a few days later released a letter to then-FBI director James Comey, urging him to make public intelligence about the Trump campaign and Russia. After the election, Brennan became a TV pundit and used his platform to accuse Trump of treason and claim the Russian government was blackmailing him.

Finally, there is the FBI’s own relationship with Christopher Steele, the former British spy who helped an opposition research firm produce a series of “dossiers” on Trump and his associates that alleged a wide conspiracy. The bureau used these products in its surveillance warrant on Page. Because those dossiers were intended to place negative stories in the press about Trump, it’s understandable that aspects of the FBI investigation would leak to reporters.

Most Washington leaks are neither good nor bad; they can be used to expose official abuse or as cudgels in a bureaucratic turf war. Leaks of ongoing counterintelligence investigations, however, are a different matter. They risk undermining the probes themselves, by making adversaries aware of them. They are also deeply unfair to the targets of such investigations, by tarnishing their reputations without a full airing of the evidence.

“Leaking information about an ongoing intelligence investigation is a classic example of surveillance abuse,” says Tim Edgar, who served as the director of privacy and civil liberties for the National Security Council under President Barack Obama. “It’s what J. Edgar Hoover did.” What happened in early 2017, he says, “clearly appeared to be politically motivated leaking.”

Leaks set the narrative for the first two years of the Trump presidency. Granted, Trump did not help his cause with his haphazard firing of Comey or his frequent and hyperbolic attacks on the intelligence community. But given that Mueller did not find the conspiracy alleged by people such as Brennan, those leaks now deserve scrutiny.

Edgar says he does not think Barr is the best person to conduct that investigation. The Justice Department’s inspector general or the White House’s Privacy and Civil Liberties Oversight Board, he said, would be more credible. Nonetheless, he says, “These are serious questions that need to be answered in a serious way.”

It’s a pity that more Democrats do not see it that way. Many howled in protest at Barr’s comment about spying. As Representative Adam Schiff, chairman of the House Intelligence Committee, put it: “This type of partisan talking point may please Donald Trump, who rails against a ‘deep state coup,’ but it also strikes another destructive blow to our democratic institutions.”

Schiff should recalibrate his umbrage. Trump will be president until at least 2021. If Democrats see no problem with the anonymous disclosure of elements of ongoing counterintelligence investigations, or the fruits of surveillance, what is to stop Trump from doing it too? To borrow a popular slogan of the moment: This is not normal.

Eli Lake is a Bloomberg Opinion columnist covering national security and foreign policy. He was the senior national security correspondent for the Daily Beast and covered national security and intelligence for the Washington Times, the New York Sun and UPI.